TTyypes pes ofof E Evvidenidence ce n Testimonial evidence n from eyewitnesses having personal knowledge n Documentary evidence n This includes anything not directly testified to, such as: n Police reports, contracts, stock certificates, etc. n Real evidence n The physical object involved in the cause of action; e.g., n Weapons, scars, etc. n Demonstrative evidence n Photographs n Demonstrations n Computer modelsls Advanced Civil Litigation Class 3 Slide 1 DireDirect ct vvs. Cirs. Circucumstmstantantial Eial Evviidedence nce n Direct evidence shows the event to have happened directly. Examples: n Eyewitness testimony n Video tape of incident n Audio tape of incident n Circumstantial evidence provides evidence of facts that could lead to an inference that something happened; examples: n Blood and fingerprints n Weapon registration records n Both are admissible and both can be incriminating. There is no difference in the rules of evidence between these!! Advanced Civil Litigation Class 3 Slide 2 Planning the Investigation and The Rules of Evidence n In conducting an investigation, the first thing that must be asked is whether a piece of evidence will be admissible. If not: n It may not pay to seek out the evidence; and n You need to continue the search for something that can prove the same thing that is admissible n Keep in mind though, that sometimes finding information is still useful even if it wonn ’’ t be admissible, as it can often be used: n To lead to other admissible evidence n As negotiating leveragege Advanced Civil Litigation Class 3 Slide 3 RuRuleless of of EEvvideidennccee:: Wha Whatt t too Wa Wattcchh ou outt f foorr n Character Evidence n Generally inadmissible; with exceptions for n Character of the accused n Character of the victim in a selff ­­ defense case n To prove motive, opportunity, identity, etc. n Habit n Certain sexual abuse cases n Anything to which the other side has ““ opened the doorr ” n Illegal searches and seizures n This is not usually relevant in civil cases n Privileges; inadmissible communications include: n Attorney­ ­ client n Doctor Patient n Priestst ­­ Penitentt Advanced Civil Litigation Class 3 Slide 4 Rules oRules of Ef Evvidenidence: Hearsace: Hearsay y n Keep in mind that hearsay is generally not admissible. n So if a witness tells you what some other person said, go track down that person and get a first hand statement n There are many exceptions to the hearsay rule, including: n Statements of your opponent n Former testimony, in some cases n The ““ res gestates gestate ” category exceptions n Excited utterance n Present sense impression n Present state of mind n Dying declarations n Statements made for purpose of a medical diagnosissis Advanced Civil Litigation Class 3 Slide 5 Rules oRules of Ef Evvidenidence: Oce: Opinpiniionons s n During investigation, it’ ’ s important to know the opinion rule because in most cases, a witness cann ’’ t speculate on the stand. n Exceptions: n Where a reasonable person could draw the conclusion from the circumstances n Expert testimony n Experts can be expensive and most people cann ’’ t qualify; so before you conclude that you need an expert, determine: n Whether you can get the same information in from another source n If the expert will testify how you want him/her to Advanced Civil Litigation Class 3 Slide 6 Rules of Evidence: Authentication of Documents n Establish a chain of custody for all physical evidence! n Itt ’s tedious work, but to introduce physical evidence, you may have to show who held it for how long from the moment of the incident until is appears in court. This may require many witnesses to confirm one piece of evidence n In civil cases, chain of custody if often stipulated to, so as tt o save both parties the trouble n Original Documents Rule (“ “ Best Evidence” ” ) n The original is generally required of any relevant document, as opposed to a handwritten copy or a summary or chart prepared by another person that indicates what the document says n However, photocopies are allowed unless there’ s some reason to doubt its authenticityticity Advanced Civil Litigation Class 3 Slide 7 Planning the Investigation n First, you need to calculate: n 1) what elements you need to prove to win your case n 2) what facts will be needed to establish those elements n 3) What sources will or may provide those facts n Second, review the file you already have to: n See what facts you already can prove with that you have n See if you can find leads to the other information n Next, make a list of likely sources of information this case; e.g., n Your client and witnesses n Police and hospital, in an accident case n Government agencies n Public library and similar soursess Advanced Civil Litigation Class 3 Slide 8 Internet Research n Necessary information can often be gotten online, including: n Weather reports for relevant dates n Location of people or businesses n Public records, deeds, etc. n Information about medicines and drugs n Real estate and vehicle appraisals n However, if you are going to use any of this information in court, think about how youyou ’’ re going to introduce it. n YouYou ’ll need to introduce it through a witness or reliable documents n A court is not going to allow you to introduce a Wikipedia article as evidencece …… Advanced Civil Litigation Class 3 Slide 9 Specific Methods of Investigating n Viewing and combing the scene of the incident n Calling or mailing all people that may have information n Internet searches for information n Personal interview with key witnesses n Professional research services n Private investigators, if necessary and can be afforded n Searches of legal databases, like Lexis n Photographing and/or videotaping key scenes and pieces of evidence n Run scientific tests n Consult experts n Freedom of Information Act requests Advanced Civil Litigation Class 3 Slide 10 InInvvestiestigatgationions s – – Ethical CoEthical Concerncerns ns n A legal professional must not approach another party represented by counsel without the consent of the other partyy ’’ s lawyer n One must not misrepresent his interests in the case or whom he works for n Paralegals must be careful not to give legal advice n And attorneys should not give legal advice to non­ c lients n Disclose all conflicts of interests when interviewing anyone n One may not threaten, harass, intimidate or bribe a potential witness n Complete your own work product­ donn ’’ t rely on opponentnt ’’ s investigations!! Advanced Civil Litigation Class 3 Slide 11 GGathathererining Eg Evvideidence nce n Medical records n HIPAA prevents providers from releasing information without authorization. In almost all cases, you will need authorization or a subpoena to get medical records n Employment records n Also, because of confidentiality rules and policies, authorization or subpoena may be necessary n Investigating the scene of an accident n Try diagramming the scene n Photograph the scene from every angle you can think of n Try to reenact the incident on your own with information you have to get a clearer picture of what happenedd Advanced Civil Litigation Class 3 Slide 12 LoLocatincating Witg Witnenesses sses n Ways to get information on who might be a witness: n Asking the client for ideas n Review other evidence for names of witnesses n Ask people who work or live nearby if anyone saw anything n Use media or ads to get the word out that you are looking for witnesses n Locating candidates for expert witnesses n Ask colleagues who have had similar issues and cases n Put ads in professional journals n Look at applicable departments in universities for experts n Look at legal publications or online for ads placed by experts advertising their availability Advanced Civil Litigation Class 3 Slide 13 IntInterervvieiewwinging W Witnitnesses esses n Know beforehand exactly what information you want from the witnesses n Try not to have to go on a ““ fishing expedition” which will waste time and annoy the witness. n Have a checklist for all information you want from the witness n Be friendly and courteous to the witness n A person who doesnrson who doesn ’t like you is less cooperative n Donon ’t threaten a witness with a subpoena unless you have to. If you threaten to get a subpoena, be prepared to follow through n Emphasize that you and your client are looking for the witnessss ’ help. n Draft a witness statement after the interview and ask the witness to review it for accuracyy Advanced Civil Litigation Class 3 Slide 14 Preserving Evidence for Trial n Backup safely all electronically stored evidence n Make sure it’ s password protected and can’ t be tampered with n Make sure it’ ’ s clearly identified and wonn ’’ t confuse someone in the firm looking at the evidence n Keep a log for people who check evidence out to sign n Make sure you can establish the chain of custody!! n Before evidence is tested in a manner that could damage it, back it up if possible and give the opponent a chance to examine it n Back up and copy (and scan) all photos, sketches, documents, etc. n Back up all video and audio taped evidence Advanced Civil Litigation Class 3 Slide 15 .